The basic rule of damages in a case of unfair competition is the amount which the plaintiff would have made, except for the defendant's wrong. ( Santa's Workshop v. Sterling, 2 A.D.2d 262, 267; Michel Cosmetics v. Tsirkas, 282 N.Y. 195, supra.) On the record before us, we are not persuaded that an award of the defendants' entire profits, as found by the Referee, would be proper in the circumstances of this case.

It is true that the pink color belongs in the public domain but it may not be used by a competitor in such a way as to act as a means of persuasion that it represents the product of another. The same argument was used in Santa's Workshop v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839, affirmed 3 N.Y.2d 757, 163 N.Y.S.2d 986, where the court rejected the contention that the words "St. Nick" and the portrayals of Santa Claus, although in the public domain, may be used to confuse or misrepresent.

This confusion plaintiff seeks to avoid and this court believes it to be entitled to protection on its own and on its readers' behalf. ( Philadelphia Stor. Battery Co. v. Mindlin, 163 Misc. 52, 56; Tiffany Co. v. Tiffany Prods., 147 Misc. 679, affd. 237 App. Div. 801, affd. 262 N.Y. 482; Martha Washington Candies Co. v. Martha Washington Ice Cream Co., 280 App. Div. 256, appeal dismissed 304 N.Y. 974; Santa's Workshop v. Sterling, 282 App. Div. 328, 329-330, 2 A.D.2d 262, affd. 3 N.Y.2d 757.) Defendant must discontinue the use of the word "Modern" in the title of its magazine "Modern Confessions" and forthwith cease the use of said word for its present or any other like magazine to be published by it. Judgment as indicated, with costs.

Plaintiff is entitled to be protected from any future menace, as occurs in cases of trade-mark confusion or purchaser deception ( Admiral Corp. v. Penco, Inc., 203 F.2d 517, 520; Gannert v. Rupert, 127 F. 962; Cecile Gagnon Co. v. Bourjois, Inc., 223 F.2d 731, 733). A restraining order will prevent confusion and will give plaintiff the protection to which it is entitled ( Philadelphia Stor. Battery Co. v. Mindlin, 163 Misc. 52, 56; Tiffany Co. v. Tiffany Productions, 147 Misc. 679, affd. 237 N.Y. 801, affd. 262 N.Y. 482; Martha Washington Candies Co. v. Martha Washington Ice Cream Co., 280 App. Div. 256, appeal dismissed 304 N.Y. 974; Santa's Workshop v. Sterling, 282 App. Div. 328, 329-330; 2 A.D.2d 262, affd. 3 N.Y.2d 757). Accordingly, the motion of the plaintiff is in all respects granted, and defendant will be restrained in the order to be entered herein from in any way displaying signs such as "main entrance," "Bargain," "Barn" or from displaying in front of its premises merchandise similar to that offered and sold by the plaintiff or from in any other manner so conducting its business or its advertising in front of its place of business so that the public will be misled.

There the court found that "the tendency of the similarity of the brand and accompanying design, and of the make-up of the packages, to mislead ultimate consumers, is so evident, that it seems to us a case of unfair competition is made out" (240 U.S. at pages 423-424, 36 S.Ct. at page 364). On appeal from a judgment in the plaintiff's favor in Santa's Workshop v. Sterling, 3rd Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, the court affirmed but reduced the judgment, one judge dissenting and voting to dismiss. The facts showed such an obvious theft of the plaintiff's business ideas, physical layout and advertising that the fraudulent nature of the defendant's competition was most apparent.

Restatement of Torts, Sec. 741 (1938), Lucien Lelong, Inc. v. Lander Co., 2 Cir., 1947, 164 F.2d 395. In cases where the New York courts have occasionally granted relief without proof of secondary meaning, one of the aforementioned predatory practices was established: In Santa's Workshop, Inc. v. Sterling, 3d Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, it was palming off; in Oneida, Ltd. v. National Silver Co., Sup.Ct.Madison Co. 1940, 25 N.Y.S.2d 271 and Avon Periodicals v. Ziff-Davis Publishing Co., 1st Dept. 1953, 282 App. Div. 200, 122 N.Y.S.2d 92, it was actual deception; in Dior v. Milton, Sup.Ct.N.Y.Co. 1956, 9 Misc.2d 425, 155 N.Y.S.2d 443, affirmed 1st Dept. 1956, 2 A.D.2d 878, 156 N.Y.S.2d 996, and Metropolitan Opera Ass'n v. Wagner-Nichols Record Corp., Sup.Ct.N.Y. Co. 1950, 199 Misc. 786, 101 N.Y.S.2d 483, affirmed 1st Dept. 1951, 279 App. Div. 632, 107 N.Y.S.2d 795, it was violation of plaintiff's property rights. The federal decisions fall into the same pattern: Artype, Incorporated v. Zappulla, 2 Cir., 1956, 228 F.2d 695, and Flint Co. v. Oleet Jewelry Manufacturing Co., D.C.S.D.N.Y. 1955, 133 F. Supp. 459 (actual deception); Upjohn Company v. Schwartz, 2 Cir., 1957, 246 F.2d 254 (palming off); International News Service v. Associated Press, 1918, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (appropriation of property rig

J.R. Wood Sons, Inc. v. Reese Jewelry Corp., 2 Cir., 1960, 278 F.2d 157, 160. See e.g., Santa's Workshop v. Sterling, 3d Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, affirmed 1957, 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529; Restatement, Torts, Vol. III, p. 540. Although jurisdiction of the claim for unfair competition depends on the federal jurisdiction which plaintiff invoked on its claim for patent infringement, it is probable that New York law applies to the claim for unfair competition.

There are cases which take a contrary view. Santa's Workshop v. Sterling, 2 A.D.2d 262, 153 NYS2d 839 (1956) (owner of amusement enterprise entitled "Santa's Workshop" granted injunction restraining defendant from using the name "St. Nick" or portrayals of Santa Claus in connection with defendant's business of animal display); Avon Periodicals v. Ziff-Davis Pub. Co., 282 App. Div. 200, 122 NYS2d 92 (1953) (defendant enjoined from using word "Eerie" on "comic" magazine although plaintiff failed to establish secondary meaning).

Norwich Pharmacal Co. v. Sterling Drug, Inc., 2 Cir., 271 F.2d 569, 571, certiorari denied 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739. See Santa's Workshop, Inc. v. Sterling, 3rd Dep't, 2 A.D.2d 262, 153 N.Y.S.2d 839; Upjohn Co. v. Schwartz, 2 Cir., 246 F.2d 254. Cf. Yale Elec. Corp. v. Robertson, 2 Cir., 26 F.2d 972. That plaintiffs' and defendant's restaurants are far apart is not necessarily a decisive fact. See, e.g., Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 257 F.2d 79 (Chicago "Pump Room" obtains injunction against Philadelphia restaurant); Stork Restaurant, Inc. v. Sahati, 9 Cir., 166 F.2d 348 (New York "Stork Club" obtains injunction against San Francisco tavern); Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332 (Paris "Maxim's" obtains injunction against New York restaurant). Appellant also claims that the dismissal of an application by appellees for an injunction pursuant to New York Penal Law McKinney's Consol.Laws, c. 40, § 964, which makes it a misdemeanor for one with intent to deceive the public to assume the corporate, assumed, or trade name of another and provides for injunctive relief, is res judicata here.

Sullivan v. Ed Sullivan Radio T.V., Inc., 1 A.D.2d 609, 152 N.Y.S.2d 227 (1st Dept. 1956); Avon Periodicals, Inc. v. Ziff-Davis Publishing Co., 282 App. Div. 200, 122 N.Y.S.2d 92 (1st Dept. 1953); Santa's Workshop, Inc. v. Sterling, 282 App. Div. 328, 329-330, 122 N.Y.S.2d 488 (3d Dept. 1953). See also, Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (3d Dept. 1956) aff'd. 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 (1957); Artype, Inc. v. Zappulla, 228 F.2d 695, 697 (2d Cir., 1956) (New York law applied).